California Court Dismisses Honey False Ad Suit with Prejudice

A federal court in California has dismissed as preempted putative class claims filed against Target Corp. and Honeytree, Inc., alleging that they retail and manufacture honey products falsely advertised as “honey” or “pure honey” despite the absence of all pollen, an allegedly “defining characteristic of honey under applicable law.” Cardona v. Target Corp., No. 12-1148 (C.D. Cal., decided March 20, 2013).

The court rejected the defendants’ challenge to the plaintiff’s standing, finding that she had sufficiently alleged an injury under Kwikset Corp. v. Superior Court, 51 Cal. 4th 310 (2011). But the court determined that the claims were preempted under the Nutrition Labeling and Education Act, agreeing with the defendants that the plaintiff “cannot plausibly allege that ‘pollen’ is a ‘characterizing ingredient’ of ‘honey,’ and that the ‘common and usual name’ of honey is honey, irrespective of pollen content.” According to the court, “the requirement that pollen-less honey be labeled as ‘(without pollen)’ is not ‘identical to’ the ‘common and usual name’ requirement under 21 U.S.C. § 343(i)(1), and is therefore preempted by § 343-1(a)(3).” The court dismissed the claims with prejudice.